TORNIKA SAS / AFFIMOBIZ
GENERAL TERMS AND CONDITIONS APPLICABLE TO AFFIMOBIZ AFFILIATE PROGRAM
- AFFIMOBIZ mainly engages in providing publicity management services via a network of mobile advertising spaces and a recommendation intelligence widget.
- These General Terms and Conditions (the Terms and Conditions) regulate and apply to the participation by the Affiliate in the AFFIMOBIZ Affiliate Program, and therefore to the campaigns management and mobile publicity services that the Affiliate will provide to AFFIMOBIZ.
2. ENROLMENT IN THE AFFILIATE PROGRAM
- The enrolment by an Affiliate in the AFFIMOBIZ Affiliate Program will be settled by submitting an application to the AFFIMOBIZ Affiliate Program (which AFFIMOBIZ will be entitled to accept or reject at its sole discretion for any reason), or by means of the acceptance by the Affiliate of any IO submitted by AFFIMOBIZ within such AFFIMOBIZ Affiliate Program.
- The Affiliate undertakes to comply with all the terms, conditions, guidelines and policies of AFFIMOBIZ or any third party which provides services used by Affiliate in connection with AFFIMOBIZ Affiliate Program, including but not limited to, email providers, social networking services and ad networks.
- AFFIMOBIZ may revoke the Affiliate’s participation in the AFFIMOBIZ Affiliate Program at any time and at its sole discretion for any reason, by giving written notice to the Affiliate.
3. INSERTION ORDERS
- Once an Affiliate is enrolled in the AFFIMOBIZ Affiliate Program, it will have access to, or will be provided with, certain campaigns (in relation to AFFIMOBIZ or to third parties). Management of such campaigns by the Affiliate, and in particular the insertion or display of the same on the mobile sites owned, managed or controlled by the Affiliate shall be carried out in accordance with the Insertion Orders (IO) and notifications made between the Parties, and complying with the terms and conditions established herein. To this effect the Parties will have to complete and confirm the corresponding IO and agree on the terms and conditions applicable to each of the campaigns.
4. CREATIVE MATERIAL AND IP RIGHTS
- AFFIMOBIZ will provide the Affiliate with the creative material of each campaign by means of graphic and textual links and/or other creative materials (collectively, the Links), that may link to specific web sites or mobile sites managed by AFFIMOBIZ or third parties (the Sites). The design of the campaign or advertisement to be inserted by the Affiliate on the mobile sites owned, managed or controlled by the same may consist of various images, audio-visual files or logos. The Affiliate or its End Affiliates and Publishers (as this term is described below) shall in no event modify the creative material provided by AFFIMOBIZ.
- AFFIMOBIZ hereby places on record that campaigns can relate to, and/or be prepared by, third parties (the Clients) and therefore, in such cases, AFFIMOBIZ has no control over the Links or its content. To this effect, AFFIMOBIZ undertakes to require the Clients that the creative materials do not (i) infringe patents, copyrights, trade secrets or other third-party industrial or intellectual property rights; (ii) contain (or link to) material which is defamatory, libellous, misleading, harmful, threatening, harassing, promotes violence, promotes discrimination (whether based on sex, religion, race, ethnicity, nationality, disability or age), promotes illegal activities (such as gambling), contains profanity, or which constitutes an invasion of any right to privacy, breaches advertising rights or, in any other manner, breaches third-party rights; or (iii) breach any type of law or regulation, whether international, community, state, regional or municipal, which may be applicable (the Objectionable Content). Notwithstanding the foregoing, AFFIMOBIZ assumes no liability towards the Affiliate regarding the Links (or its content) prepared and/or sent by and/or relating to Clients or other third parties different from AFFIMOBIZ.
- AFFIMOBIZ grants the Affiliate a nonexclusive, non-transferable, revocable right to use the Links and to access to the Sites for the sole purpose of identifying the Affiliate’s Media as participant in the AFFIMOBIZ Affiliate Program. AFFIMOBIZ hereby assigns to the Affiliate, to the extent necessary for the performance of the commercial relationship between the parties set forth herein (and to the extent an assignment has also been made to AFFIMOBIZ by the relevant Client when necessary) the right of use over logos, photographs, images, texts, trademarks, trade names, descriptions, etc. regarding AFFIMOBIZ, the Client and/or the products included in a particular Link, in order that the Affiliate can be able to carry out the campaign in the terms agreed in the corresponding IO. This right of use is assigned solely and exclusively for a specific approved campaign and for the duration of the same. This assignment is non-exclusive. In no event shall the granted license imply transfer of ownership.
- The Affiliate will only be entitled to access and use the Links to the extent that it is a member in good standing of the AFFIMOBIZ Affiliate Program.
- The Affiliate undertakes not to alter, modify, manipulate or create derivative works of the Links provided by AFFIMOBIZ, or the graphics, logos or creative contained in, or derived form, the Links. Affiliate agrees that AFFIMOBIZ may use any suggestion, comment or recommendation the Affiliate choose to provide AFFIMOBIZ without compensation
- No Party may copy, distribute, reproduce or use the intellectual property rights of the other Party except for the uses expressly permitted in these Terms and Conditions.
- Except as expressly stated herein, nothing in these Terms and Conditions is intended to grant the Affiliate any rights to any of AFFIMOBIZ trademarks, service marks, copyrights, patents or trade secrets.
5. AFFILIATE UNDERTAKINGS
- Once an IO has been placed and confirmed by the Parties (an therefore the particular terms for a given campaign have been agreed) the Affiliate will insert and/or display the Link provided by AFFIMOBIZ on the mobile sites owned, managed or controlled by the same (the Media).
- The Affiliate shall be the sole responsible for the development, operation, and maintenance of, and all content on or linked to, the Media (whether it is owned Media or Media from its Network, as this term is defined below). In particular the Affiliate will ensure that the relevant Media do not copy or resemble the look and feel of AFFIMOBIZ or Clients Sites or create the impression that the Media is endorsed by AFFIMOBIZ or any of the Clients. Moreover, the Affiliate undertakes (and will ensure) that no Link will be placed on any online auction platform (as eBay or amazon).
- AFFIMOBIZ will have the right to reject the Media which it considers inappropriate and objectionable for the campaigns.
- The Affiliate undertakes to comply with (i) all obligations, requirements and restrictions under these Terms and Conditions and whatever other terms and conditions agreed between AFFIMOBIZ and the Affiliate; and (ii) all applicable laws, rules and regulations.
- In no event shall the Affiliate make representations, warranties or other statements concerning AFFIMOBIZ or a Client or any of their respective products or services, except as expressly authorized herein or in the relevant IO.
The Affiliate hereby undertakes to comply with the following terms and conditions applicable to the specific promotional programs set forth below:
- Email Campaigns: AFFIMOBIZ will provide an opt-out method in all Links, however, if any opt-out requests come directly to Affiliate, Affiliate shall immediately forward them to AFFIMOBIZ at email@example.com. Affiliate's emails containing the Links may not include any content other than the Links, except as required by applicable law.
- Affiliate Network Campaigns: Affiliates that maintain their own publisher networks or their own end-affiliates networks (the Networks) agree to place the Links regarding a confirmed campaign in the Networks in order to permit the access and use of the same by those publishers or end-affiliates within the Affiliate’s Network (the End-Affiliates and Publishers).
- The Affiliate hereby undertakes to communicate its End-Affiliates and Publishers all the terms and conditions contained herein, and whatever other terms and conditions agreed by AFFIMOBIZ and the Affiliate for a relevant campaign, and in particular the conditions and regulation applicable to the Links, the Media and the IP rights (and to obtain the relevant undertakings from the End-Affiliates and Publishers), so that they fully apply to all campaigns placed by AFFIMOBIZ in the AFFIMOBIZ Affiliate Network or through the relevant IO sent to the Affiliate, as if such campaigns were directly managed by the Affiliate through its own Media. Therefore, the Affiliate undertakes to require and confirm that all End-Affiliates and Publishers affirmatively accept, through verifiable means, these Terms and Conditions prior to obtaining access to the Links. Notwithstanding the foregoing, the Affiliate will be fully liable before AFFIMOBIZ for the fulfilment of these Terms and Conditions and whatever other terms and conditions agreed with AFFIMOBIZ, and despite the fact a campaign is managed directly by the Affiliate or indirectly through its Networks.
- The Affiliate undertakes to maintain its Networks according to the highest industry standards. The Affiliate shall not permit access to its Network to any End-Affiliate and Publisher who’s Media or business model involves content containing Objectionable Content, and/or shall terminate access of such End-Affiliate or Publisher to campaigns placed by AFFIMOBIZ within the AFFIMOBIZ Affiliate Program.
- The Affiliate undertakes that it will expressly forbid any End-Affiliates and Publishers to modify the Links in any way.
- All End-Affiliates and Publishers must be in good standing with the Affiliate. Moreover, the Affiliate shall promptly exclude from the Network (and/or impede access to campaigns placed by AFFIMOBIZ within the AFFIMOBIZ Affiliate Program) End-Affiliates and Publishers who take, or could reasonably be expected to take, any action that violates these Terms and Conditions. In the event that either Party suspects any wrongdoing by an End-Affiliate or Publisher with respect to the Links, the Media or a relevant campaign, it shall promptly disclose to the other party the identity and/or contact information for such End-Affiliate or Publisher, and the Affiliate shall promptly remove such End-Affiliate or Publisher from the Network and/or terminate its access to campaigns placed by AFFIMOBIZ within the AFFIMOBIZ Affiliate Program.
- Affiliates (and End-Affiliates and Publishers) shall strictly comply with the applicable anti-spam regulations from time to time in each relevant country. All emails sent in connection with the AFFIMOBIZ Affiliate Program must include the appropriate party's opt-out link. From time to time, AFFIMOBIZ will be entitled to request the Affiliate the final version of the emails containing linking or referencing the AFFIMOBIZ Affiliate Program (prior to their sending) in order to AFFIMOBIZ to review and as the case may be approve the same. Upon receiving written approval from AFFIMOBIZ, the Affiliate will be entitled to send such email to third parties.
- It is solely the Affiliate’s obligation to ensure that the email complies with the Act. You agree not to rely upon AFFIMOBIZ’S approval of your email for compliance with the applicable anti-spam regulations.
- It is expressly prohibited to use any persons, means, devices or arrangements to commit fraud, violate any applicable law, interfere with other affiliates or falsify information in connection with referrals through the Links or the generation of Fees or exceed Affiliate’s permitted access to the AFFIMOBIZ Affiliate Program. Such acts include, but are in no way limited to, using automated means to increase the number of clicks through the Links or completion of any required information, using spyware, using steal ware, cookie-stuffing and other deceptive acts or click-fraud. AFFIMOBIZ shall make all determinations about fraudulent activity in its sole discretion.
- AFFIMOBIZ will provide the Affiliate the relevant data on the evolution and results of a campaign on a monthly basis during the first fifteen (15) days of every month (such data being obtained from Clients servers and statistics). All data generated or supplied in connection with these Terms and Conditions or the corresponding IO are confidential and should not be provided to third parties unless authorized by AFFIMOBIZ. As an exception to the above, the Affiliate may provide the mentioned confidential information to its End-affiliates and/or Publishers exclusively in the framework of what is regulated in this agreement.
- The Parties may establish any other mechanisms which they consider necessary for the coordination and monitoring of campaigns.
7. PRICE OF THE SERVICES
- As consideration for the services for a specific campaign, AFFIMOBIZ shall pay the Affiliate the corresponding fees for each Qualified Action, in accordance with the applicable pricing structure as indicated in the IO (plus applicable VAT) (the Fee).
- A Qualified Action, as defined in the relevant IO or in the communications between the Parties, shall mean the following actions carried out by an individual person: CPI (Cost per Installation), CPA (Cost per Action, also called Cost per Acquisition) CPL (Cost per Lead), CPS (Cost per Sale), CPE (Cost per Engagement), CPC (Cost per Click), CPM (Cost per [thousand] Impressions); provided that (i) the action is not made through pre-populated fields; (ii) all the information required for such action has been completed within the time period determined by AFFIMOBIZ or the Client; and (iii) such action is not determined by AFFIMOBIZ (or the Client to be fraudulent, incomplete, unqualified or a duplicate). In no event shall such actions be generated by computer systems, such as a robots, spiders, computer scripts or other automated, artificial or fraudulent methods to appear like an individual.
- The Fee shall be calculated on the basis of the data provided by AFFIMOBIZ as per section 6 above regarding the evolution and results of the campaign (no other measurements or statistics of any kind shall be accepted by AFFIMOBIZ or have any effect for the Fee calculation). If AFFIMOBIZ does not provide the data required to calculate the Fee within fifteen (15) days as of the date on which it was requested, the Affiliate will be entitle to provisionally use any other data which it may have in connection with the campaign (own or third-party data) to make the calculation of the estimated Fee (this shall be the sole scenario in which invoices may be issued based on statistics not provided by AFFIMOBIZ, and such estimated Fee will be adjusted as per the data finally provided by AFFIMOBIZ, when available).
- AFFIMOBIZ shall have the right to charge back to the Affiliate’s account any previously paid Qualified Actions that are subsequently determined to have not met the requirements to be a Qualified Action.
- In the event the Affiliate disputes in good faith the Fee calculated as per the data provided by AFFIMOBIZ, the Affiliate shall inform AFFIMOBIZ of the amounts in dispute in writing and in sufficient detail (providing all the documents and information evidencing the amounts in dispute), within ten (10) days as of the date on which the Fee calculations were made. If the Affiliate does not dispute the calculated Fee as set forth herein, then Affiliate agrees that it irrevocably waives any claims based on such Fee. If a Fee is disputed by the Affiliate, the Parties will try to reach an agreement on the final Fee due within fifteen (15) days. If Parties are unable to reach an agreement within such period, Fee shall be invoiced taking into account AFFIMOBIZ’s calculation, and the Affiliate will be entitled to claim the disputes amounts following section 20 below.
- The services shall be invoiced by the Affiliate in line with the payment schedule established in the IO (or, in case not expressly determined on the IO, on a monthly basis), and VAT and any other chargeable amounts shall be shown separately on the invoice. To the extent possible, invoices will include the services provided during a given period taking into account all the campaigns in which the Affiliate has participated within the AFFIMOBIZ Affiliate Program during the same.
- Notwithstanding the foregoing services shall not be invoiced until the due Fee to the Affiliate amounts at least €100. Accounts with a balance of less than €100 will roll over to the next month/invoicing period, and will continue to roll over until the amount of €100 is reached.
- Fees will be paid to the bank account designated by the Affiliate on the 30th day of the month following the one in which the invoice was issued (unless any other period is stated in the corresponding IO). If payment is not made within the stipulated time limits (and provided that such payment is due as per these Terms and Conditions), the Affiliate will promptly notify AFFIMOBIZ in order the later could take the necessary actions to proceed with the payment of the relevant Fee.
- In the event AFFIMOBIZ has not received the corresponding funds from its Clients, AFFIMOBIZ may delay it payment without any penalty during one (1) additional month (i.e., until the 30th of the next month). AFFIMOBIZ will inform the Affiliate of such non-payment situation at least forty-four (48) hours in advance.
- In no event shall AFFIMOBIZ be responsible for any interruptions or errors which may have occurred in the network, servers or platforms. If one of the Parties detects interruptions, errors or malfunctions, it shall notify the other Party of the interruption, error or malfunction so that they may jointly decide the actions to take in relation thereto (including, if the case, suspending the campaign).
9. DURATION AND CANCELLATION
- The commercial relationship between the Parties shall be indefinite and shall come into force on the date on which AFFIMOBIZ approves the enrolment of the Affiliate in the AFFIMOBIZ Affiliates Program or on the date the first IO is signed, whichever comes first. Either Party may terminate the commercial relationship between them for any reason by giving the other Party one (1) working day prior notice in writing of its wish to terminate the relationship.
- AFFIMOBIZ may cancel or suspend a campaign by giving at least one (1) working day prior written notice to the Affiliate. In addition, AFFIMOBIZ may order the cancelation of a specific campaign at any time if the campaign is not generating the expected trade or yield levels, and on such event the Affiliate will have 24 hours to cancel such campaign.
- Actions performed by individuals, or the results of a campaign, after the (1) working day period/ 24 hours period established in these sections 9.1 and 9.2 will not be taken into account to calculate the Fee.
- Either of the Parties, acting in good faith, may withdraw a specific campaign without having to provide prior notice to the other Party for legal reasons or in the event of a third-party claim which may cause damage.
- Upon termination the Affiliate will immediately cease all use of, and delete, all Links, plus all AFFIMOBIZ’s or Client’s intellectual property, and will cease representing itself as a AFFIMOBIZ affiliate or member of AFFIMOBIZ Affiliates Program.
- Sections 4 (intellectual property), 10 (commitments, disclaimer and limitation of liability), 13 (confidentiality), 14 (data protection) and 20 (governing law and jurisdiction) shall remain in force after the termination of the commercial relationship between the Parties.
10. COMMITMENTS, DISCLAIMER AND LIMITATION OF LIABILITY
- The Affiliate represents and warrants, acknowledges and accepts that (i) AFFIMOBIZ AFFILIATE PROGRAM AND LINKS, AND THE PRODUCTS AND SERVICES PROVIDED IN CONNECTION THEREWITH, ARE PROVIDED TO AFFILIATE "AS IS". EXCEPT AS EXPRESSLY SET FORTH HEREIN, AFFIMOBIZ EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. AFFIMOBIZ DOES NOT WARRANT THAT THE AFFIMOBIZ AFFILIATE PROGRAM OR LINKS WILL MEET AFFILIATE'S SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF THE AFFIMOBIZ AFFILIATE PROGRAM OR LINKS WILL BE COMPLETELY ERROR- FREE OR UNINTERRUPTED. AFFIMOBIZ EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY ACT OR OMISSION OF A CLIENT OR THEIR PRODUCTS OR SERVICES. AFFIMOBIZ DOES NOT GUARANTEE THAT AFFILIATE WILL EARN ANY SPECIFIC AMOUNT OF FEES; (ii) AFFIMOBIZ does not represent or warrant that the information on the Links, websites and/or mobile sites provided by AFFIMOBIZ or the Client are accurate, complete or current; (iii) any defects in the operation or functionality of the Links websites/mobile sites or software may not be corrected; (iv) the Affiliate is solely responsible for any losses, damages, expenses, liabilities, etc. (including loss of data) arising from the use of the Links, websites/mobile sites, software or any contents; (v) the Affiliate shall comply with the regulations and good practices of the sector to warrant that the Media, communications, applications, instructions, the data contained on the Media, its electronic mail messages or any other media by means of which the campaign is managed do not contain material which may have an adverse effect on AFFIMOBIZ, its Clients, licensors, agents, collaborators and associates, contractors, directors, employees, board members, affiliates, other companies of its group, suppliers or users (including, in all events, worms, viruses, Trojan horses, corrupted files, unauthorized programs or any other materials that are intended to or may damage or render inoperable the corresponding software, hardware or security measures); (vi) to the maximum extent permitted by law, the Affiliate waives all warranties, rights or remedies laid down by law or its articles of association.
- To the extent permitted by law, AFFIMOBIZ shall not be liable vis-à-vis the Affiliate FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE LINKS, PROGRAM WEB SITES, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND. IN NO EVENT WILL AFFIMOBIZ BE LIABLE FOR THE RESULTS OF A SPECIFIC CAMPAIGN, OR FOR ANY DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, PERSONAL INJURY / WRONGFUL DEATH, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUES, DATA, GOODWILL, CLIENTS REPUTATION, LOSS OF BUSINESS OPPORTUNITY, OR BUSINESS INTERRUPTION, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT AFFIMOBIZ HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.
- To the extent permitted by law, (i) the total and maximum accumulated liability of AFFIMOBIZ vis-à-vis the Affiliate arising from the commercial relationship regulated in these Terms and Conditions, the IO these Terms and Conditions apply to and the AFFIMOBIZ Affiliates Program, shall not exceed ONE THOUSAND EUROS (€1,000); and (ii) if AFFIMOBIZ is legally liable vis-à-vis the Affiliate, AFFIMOBIZ, at its sole choice, shall either (a) repair the goods or assets, (b) pay the cost of repairing or re-performing the damaged goods or services (up to the total maximum liability established in preceding point (i)). The Affiliate declares, acknowledges and accepts that it is fair and reasonable for AFFIMOBIZ to rely on the foregoing limitations taking into account the benefits that including the Affiliate in AFFIMOBIZ Affiliate Program entails for the same, and taking into account the price of the services.
11. INDEMNITY FOR DAMAGES
- The Affiliate agrees to defend and hold harmless AFFIMOBIZ, its licensors, agents, collaborators and associates, contractors, directors, employees, board members, affiliates, companies of its group, clients and suppliers (the Indemnified Parties) from any actions, proceedings, claims and demands brought against the Indemnified Parties and to pay them all damages, losses, costs, liabilities, fines, penalties and any other expenses (including legal costs) suffered or incurred by the Indemnified Parties, as a consequence (directly or indirectly), or in connection with, (i) a third-party claim arising from the Affiliate’s activities (or its End-Affiliates or Publishers activities) in relation to the AFFIMOBIZ Affiliates Program, these Terms and Conditions or the IO these Terms and Conditions apply to, including, by way of illustration and not limited to, claims arising from the management, publication, display or distribution of the Links, Sites or campaigns (by the Affiliate or its End-Affiliates and Publishers) or claims arising from the Media (including claims for defamation, breach of confidentiality agreements, violation of privacy, false, deceptive or misleading publicity or bad sales practices); (ii) wilful, unlawful, negligent or malicious acts (or omissions) by the Affiliate and/or its End-Affiliates or Publishers; and/or (iv) breach by the Affiliate and/or its End-Affiliates or Publishers of third-party intellectual or industrial property rights (including copyright).
- In addition to any other rights and remedies available to AFFIMOBIZ under these Terms and Conditions or the applicable law, AFFIMOBIZ shall have the right to delete any actions submitted through the Affiliate’s Media and withhold and freeze any unpaid Fee or chargeback paid Fees to the Affiliate’s account if (i) AFFIMOBIZ determines that the Affiliate (or its End-Affiliates or Publishers) has violated the AFFIMOBIZ Affiliates Program, these Terms and Conditions, or any other terms and conditions agreed between the Parties, (ii) AFFIMOBIZ receives any complaints about the Affiliate’s participation in the AFFIMOBIZ Affiliate Program which AFFIMOBIZ reasonably believes relevant or (iii) any Qualified Action is later determined to have not met the requirements set forth in these Terms and Conditions, or any other terms and conditions agreed between the Parties. Such withholding or freezing of Fees, or charge backs for paid Fees, shall be without regard as to whether or not such Fees were earned as a result of such breach. In the event of a material breach of AFFIMOBIZ Affiliates Program, these Terms and Conditions, or any other terms and conditions agreed between the Parties, AFFIMOBIZ reserves the right to disclose the Affiliate’s identity and contact information to appropriate law enforcement or regulatory authorities or any third party that has been directly damaged by such actions.
- AFFIMOBIZ will only indemnify the Affiliate for damages, losses, costs, liabilities, fines, penalties or any other expenses (including legal costs) suffered or incurred by the Affiliate , as a consequence (directly or indirectly), or in connection with, wilful, unlawful or malicious acts (or omissions) by AFFIMOBIZ, and subject to the limitations established in section 10.3 above.
- The Parties relationship derived from the inclusion of the Affiliate in the AFFIMOBIZ Affiliates Program is established on non-exclusive basis.
- The Parties agree that they shall not disclose to third parties any information or material in connection with the Terms and Conditions or the IO to which they are applicable. In addition, they agree not to disclose to third parties and to keep strictly confidential any information or material provided by the other Party, its employees or collaborators during the course of the commercial relationship between the Parties. In particular, the Parties shall adopt the necessary safety measures and procedures to protect the confidential nature of said information, in accordance with laws regulating intellectual property and protection of personal data.
- Information which, in executing an IO, forms part of the contents of the publicity campaign and shall be made available to users, will not be considered confidential information.
- These obligations shall remain in force indefinitely even after the commercial relationship between the Parties has terminated.
- Notwithstanding, the Affiliate expressly authorizes AFFIMOBIZ to include references and credentials regarding their commercial relationship in AFFIMOBIZ’s services proposals for Clients, publications, promotional activities or forums, at both a national and international level.
14. DATA PROTECTION
- The Affiliate knows and accepts that all personal data contained in the relevant IO shall be incorporated on a file owned by AFFIMOBIZ, which has been created with the aim to carry out the contractual relationship between the Parties, as well as to provide commercial information to the Affiliate by any means available, including by web-based technology, in order to complement the commercialized services.
- The Affiliate agrees to receive AFFIMOBIZ daily newsletter, press releases and updates via email.
- AFFIMOBIZ informs the Affiliate of its rights of access, rectification, cancellation and opposition. To exercise any of these rights, the Affiliate may write to AFFIMOBIZ, in its capacity as person or legal entity responsible for the file, at the address stated in the corresponding IO.
- In the event that AFFIMOBIZ should have access to personal data to provide the services, it shall do so in its capacity as the “person processing of the personal data” in accordance with the provisions of Section 12 of the Framework Personal Data Protection Act 15/1999, of 13 December 1999, and Sections 20 et seq. of Royal Decree 1720/2007, of 21 December 2007, which passed the regulations implemented under the aforementioned Framework Personal Data Protection Act 15/1999 and other applicable laws.
- AFFIMOBIZ shall only process the personal data which it has access to in accordance with the instructions given by the Affiliate, and shall not apply or use such data for any purpose other than that established in these Terms and Conditions, and shall not notify other persons of such data, not even for their safekeeping.
- The Affiliate shall be the only Party which shall decide on the purpose and use of the data which AFFIMOBIZ has access to.
15. COMMERCIAL NATURE OF THE RELATIONSHIP
- The relationship which is established between the Parties in accordance with these Terms and Conditions and the IO to which these Terms and Conditions apply to, is a commercial relationship to all effects. AFFIMOBIZ and the Affiliate are independent parties and they shall act in this capacity at all times, and they may not be considered, based on the inclusion of the Affiliate in the AFFIMOBIZ Affiliates Program, the Terms and Conditions or the IO to which they apply to, agents or representatives of each other or understand that there is any other type of relationship between them.
- The Parties shall each be separately liable for any corporate, tax, employment or other type of obligations arising from their commercial and economic activities.
16. ASSIGNMENT OF OBLIGATIONS
- AFFIMOBIZ may assign or subcontract all or part of its obligations arising from the Terms and Conditions or the IO these Terms and Conditions apply to without need of the Affiliate’s consent.
17. ENTIRE AGREEMENT
- The Terms and Conditions and IO, that may be complemented by e-mail notifications and commitments sent between the Parties, to which these Terms and Conditions apply to constitute the Parties’ entire agreement with respect to the subject matter hereof, and replace, annul and supersede any other agreements or documents of the Parties (including the Affiliate’s general terms and conditions) in relation thereto.
- In the event of any difference between the stipulations of the Terms and Conditions and those of the IO, the stipulations of the latter shall prevail.
- Any notices or requests related to the AFFIMOBIZ Affiliates Program, these Terms and Conditions or the IO to which they are applicable to shall be made to the contact persons and addresses indicated in the corresponding IO. Notices may be made by any lawful means which allows for the receipt and contents thereof to be recorded (including by email and fax).
19. FORCE MAJEURE
- Neither Party shall have any liability for any failures or delays in performance of these Terms and Conditions or the IO to which they apply to, arising from force majeure events beyond their control. Force majeure events include, but are not limited to, natural disasters, governmental actions, regulatory actions or restrictions, sanctions, wars, terrorist acts, etc. Notwithstanding, a force majeure event shall not prevent the Parties from exercising their right to terminate these Terms and Conditions in accordance with the stipulations foreseen on the same.
20. GOVERNING LAW AND JURISDICTION
- These Terms and Conditions and the Insertion Orders (IO) these Terms and Conditions apply to shall be governed by and interpreted in accordance with common French law.
- The Parties expressly submit any disputes arising in connection with the validity, interpretation or performance of the Terms and Conditions or the Insertion Orders (IO) to which they are applicable themselves, to the jurisdiction of the courts of the city of Paris, waiving any other jurisdiction which may correspond to them.